Crimes against Persons

Introduction

 Under Penal Code 261 in California State the statute describes rape as an action of sensual intercourse with a person under various circumstances such as where a person is incapable as a result of mental or physical disability or where the act is accomplished against an individual by means of force, violence, menace or the person is unconscious in the event of the act. This shows that the victim is not in a capacity to resist (Caringella, 2009). This kind of act threatens the well-being of the victim as a result of pain that can be extreme given the circumstances, bodily injuries or can result in death. This means a victim can be subjected even to untold suffering hence the need to protect every person and make sure that those who are responsible face the full force of law (Davies, 2013).  This law governing rape has changed over time to adapt to the current state of living. This ensures the perpetrators face more strict and tough penalties in order to limit the occurrence of such acts.

Under California historical common law rape has been viewed as sexual intercourse against a victim will. The law did not distinguish rape from non-criminal sexual intercourse as it did not address the victims consent. During those days for a victim to be convicted the defendant had proved through other elements rather than the consent that included the victim resistance and at most crying while being attacked (Siegel 2012). In order to have success in such a case, the victim had to have her story corroborated mostly by a witness who in such scenarios is hard to find. Most of such cases went about unreported to the police due to their complexity and the shame the victims were subjected to. Rape is viewed as a sexual assault mostly to females which came with misconception and the mistrust of female accuser because rape crime was thought to be the same as consensual sexual intercourse act (Kuersten, 2003). This made the female victims not to be trusted in such cases hence there was need of proof. Courts and legal scholars believed that women lied about rape as they either imagine that rape occurred or they desired forceful intercourse so as to use such accusations for revenge and blackmails (Siegel 2012).

During the historical times, rape increased, there were many unreported rape cases and there was the growth of women movement that dispelled the misconceptions of rape. This led to the efforts for reform and redefinition of rape to shed light on the psychological and sociological characteristics of rape as a primary crime of violence rather than a crime of sex (Siegel 2012). Through this time rape was traditionally defined by non-consent that let many women suffering and the perpetrators going unpunished. The rape statute was codified using ancient law where it did not consider women who were married. During these times it was believed that in a marriage that was supposed to happen and no woman could be forced by the husband (Caringella, 2009). Rape was considered to be a serious offense when the victim was only a virgin. This was the only time the accused was seen to have taken something valuable from the victim that could not be regained. When the victim was not a betrothed virgin the act was treated as a minor offense and only a fine could be paid to the victim’s father and then ordered to marry the victim. Historically forceful sexual intercourse was believed to be enjoyed by many women though that is not true. The courts did not only use express consent but also included implied consent that was ambivalence and misleading (Davies, 2013).

With time the laws concerning rape in California have changed over time to cover the loopholes that were not addressed by the historical law. At common law, husbands were exempted for raping their wives and were not subjected to prosecution. These statutes have been modified to criminalize and narrow down the range of these offenses in marriage. The current state law recognizes this crime as marital rape creating a special procedure to deal with the contemporary feminist critics that arise. This is clear indicating that rape can happen to a married couple and one of them is not what to engage in such an act. The law institute’s model penal code offers a more sophisticated defense which explains the rule and the feature of the law of rape (Caringella, 2009). The law addresses the consensual account of concept that was not considered by the historical law providing a useful framework for understanding on the debate of marital rape (Davies, 2013). The current law also addresses the issue of conjugal rights in marriage. As a woman has given up her body to her husband she is not to be by him prostituted to another. The acknowledges the expectation of the husband to control the terms of martial intercourse though women have the right to say what they want in order to have a great cross on their own.

The current law also addresses consent of sex in prostitution. In the early century, it would be meaningless and useless for a woman to say that she was raped and yet she is a prostitute. In this law, there is a clear understanding that a woman should have a free genuine consent during this act. The law further acknowledges that a woman can sue a stranger if their wish is not honored (Davies, 2013). The law elaborates male sexuality to be importantly different from the sexuality of female not denying any gender their sex drive. Historically the law did not recognize rape to be a strong foundation of divorce. With the current law if a man cannot honor his wife wishes the situation breeds a ground for divorce. This is because the law acknowledges and places value in the consent of the act (Caringella, 2009).

With the historical law, rape was considered to take place when there was full penetration and that required prove that it did occur. With the current law under California Penal Code 261.5 a victim is supposed to prove that there was sexual intercourse regardless of how slight the penetration was which was not the case with the historical common law or the fact that one used to be married does not excuse one from the liability of the offense (Murray, 2012). With the historical law, there was a statute of limitation but it was limited and not flexible to gather enough evidence. With the current law even with limitations of certain time period, there are sexual abuse lawsuits that can be allowed even after the limitation period has expired.

The current law recognizes rape against minors (Caringella, 2009). Unlike in the historical law where a man was expected to marry and pay a fine to the victim’s father the current law articulate the offense in a serious manner where one is jailed. A minor is considered not to be fully aware of the act even when she always it to happen. It is considered that the minor was tricked or forced to engage in such an act as they are considered not to make the right decision. This is because they are still under the care of the parents or guardians during this time.

The current law tried to correct the loophole regarding rape cases in order to have a smooth and a better system of ensuring the victims get justice will the offenders get punished and rehabilitated if required (Caringella, 2009). The changes have been greatly attributed to the people knowledge about their rights. The changes have also been brought by the nature of historical law not been able to cover a wide range of rape through various dimensions. Based on the society’s needs today it would be wise to also consider rape against men. It is uncommon for the male gender to experience this but there should also be some laws made to safeguard their safety especially the minors. This will ensure that their rights and sexual consent are not violated by the opposite sex (Murray, 2012).

Conclusion

With woman’s rights movement, there have been several remarkable trends that have made women more strong. These movements have advocated for free love that makes the concerned parties act in a willing manner. The right movements have also contributed to a strong voice of women empowering them to report rape cases that in the past were the most unreported cases. By the changes regarding rape, the stigma has also gone down as women are ready to make sure that their rights are not infringed whether a virgin, married or not. The law also recognizes the importance and elaborates self-restraints and self-interest to all persons regardless of the age.

 

 

 

 

 

 

 

 

 

 

 

 

 

Reference

 

Caringella, S. (2009). Addressing rape reform in law and practice. New York: Columbia University Press.

Davies, M. C. (2013). [Cali] fornication by False Pretences-No Penalty for Partner Personation    under California's Penal Code. Journal Of Criminal Law, 77(4), 325-336.            doi:10.1350/jcla.2013.77.4.856

Kuersten, A. K. (2003). Women and the law: Leaders, cases, and documents. Santa Barbara,        Calif. [u.a.: ABC-Clio.

Murray, Y. M. (2012). Rape Trauma, the State, and the Art of Tracey Emin. California Law         Review, 100(6), 1631-1710.

Siegel, L. J. (2012). Criminology. Belmont, Calif: Wadsworth, Cengage Learning.